Posted
by
timothyon Thursday April 12, 2012 @05:18PM
from the norm-isn't-just-that-guy-on-cheers dept.

An anonymous reader writes "Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals candidly discusses the future of privacy law in an essay published today in the Stanford Law Review Online. Referencing an Isaac Asimov short story, Kozinski acknowledges a serious threat to our privacy — but not from corporations, courts, or Congress: 'Judges, legislators and law enforcement officials live in the real world. The opinions they write, the legislation they pass, the intrusions they dare engage in—all of these reflect an explicit or implicit judgment about the degree of privacy we can reasonably expect by living in our society. In a world where employers monitor the computer communications of their employees, law enforcement officers find it easy to demand that internet service providers give up information on the web-browsing habits of their subscribers.'" (Excerpt continues below.)

"In a world where people post up-to-the-minute location information through Facebook Places or Foursquare, the police may feel justified in attaching a GPS to your car. In a world where people tweet about their sexual experiences and eager thousands read about them the morning after, it may well be reasonable for law enforcement, in pursuit of terrorists and criminals, to spy with high-powered binoculars through people's bedroom windows or put concealed cameras in public restrooms. In a world where you can listen to people shouting lurid descriptions of their gall-bladder operations into their cell phones, it may well be reasonable to ask telephone companies or even doctors for access to their customer records. If we the people don't consider our own privacy terribly valuable, we cannot count on government — with its many legitimate worries about law-breaking and security — to guard it for us.'"

Personally, I don't have a Facebook account, post my life story on Twitter, or discuss my private medical conditions on a crowded train.

When I worked for someone else, I accepted that the company could in theory monitor communications I sent from company systems. However, (a) they were company systems paid for by the company and provided for work, (b) I was clearly told that this was a possibility, and (c) the major reason for them spending the money on the people and equipment who might perform that monitoring was compliance with legal obligations in various countries. Any employer is likely to be in a catch-22 situation with modern laws in most western countries on this one, even if they have nothing but respect for their employees' privacy.

In short, I do not voluntarily give up my privacy in the kinds of ways that this lawyer describes, and when it comes to another party invading my privacy, I don't consider the willingness of other people to give up their own privacy to be any sort of justification. It is more than a little ironic that in a discussion about privacy, of all things, someone should be making an argument that fundamentally assumes everyone thinks and acts the same way.

Sad that your comment was so highly rated. Do you really think that any Judas that turns his pot smoking customers in when he gets busted or bribed has any self-respect? The police are mostly polite, but I have yet to see very many who are respectful of anyone, period. Cops are just people diong their jobs, and on the whole, people suck. People who suck and also have power are not going to respect anyone at all.

I found it interesting that the submission's title was the same as a creepy Asimov story [wikipedia.org]. Surely

I think his point is that he clearly would object. His point is that society is collectively tweaking the norm of what is acceptable, and the police and politicians are exploiting this. Simply realizing and acknowledging this is the first part of fighting back: there is a difference between you selecting what to disclose and the police taking a single disclosure as tacit approval for taking everything they can.

His point is that society is collectively tweaking the norm of what is acceptable, and the police and politicians are exploiting this.

Is society really "tweaking the norms" all that much? It seems quite likely that the kind of person who posts a lot of detailed updates on Facebook or Twitter doesn't value privacy as highly. It also seems quite likely that such people will be seen/read more often on-line than those more private individuals with dissenting views. Assuming that reduced privacy is the new social norm because the balance of on-line commentary says so is a classic case of confirmation bias.

Privacy is a particularly dangerous area to make such assumptions anyway, partly because of the inherent Pandora's box effect, and partly because so many people don't actually understand how much of their privacy is being surrendered when they choose to use certain services. There have been plenty of cases where loads of people used a system, yet when presented with the facts about the privacy implications, their views then became quite hostile toward that system.

Worse than that. What the judge is saying is effectively that because you choose to disclose things about yourself, that it is reasonable for police to force me to disclose those same things about myself.

Rights do not cease to be rights merely because the majority of people do not exercise them; so long as even one person considers something to be private, the state has no legitimate authority to treat it otherwise unless failure to do so would pose an immediate threat of grave harm to another person. Period.

Except he didn't argue otherwise. He argued that if people don't care about their privacy, then we should expect our elected officials to stop caring too. He's not excusing the government's actions. He's saying that the government's actions are inevitable because the populate don't give enough shits to call them on it.

He's saying that the government's actions are inevitable because the populate don't give enough shits to call them on it.

The government purposely makes it hard to exert your rights.

Doing so puts you on the wrong side of the law, which means if you are lucky you will only be beaten and jailed for a few weeks, and if unlucky you will be permanently damaged, killed, or imprisoned for life.

When the best you can hope for is permanent nerve and vascular damage by having plastic-edge sharp zip ties on your hands cutting into nerves and flesh, beaten by the police, thrown in jail to be beaten and raped by inmates, then have everythin

He's saying that the government's actions are inevitable because the populate don't give enough shits to call them on it.

Well, what are we supposed to do when both Republicans and Democrats grant blanket immunity for their misdeeds The courts are so slow, but from the judge's comments it seems they aren't willing to do the right thing, either; and they're likely to claim that based on a selective interpretation of what ex post facto means. The only thing seeming left is to start executing politicians. Wel

>>>Rights do not cease to be rights merely because the majority of people do not exercise them

Too bad no one thought to apply this axiom to the Vaccine Opt-out debate (different slashdot article). Just because 99.9% of people do not to exercise their right to skip the needle, does not mean the other 0.1% lose their right to make their own Choice. We should not be forcing them to be injected. (IMHO)

And just to stay on topic: We should be forcing ANYONE to do things they do not want to do. Like f

Too bad no one thought to apply this axiom to the Vaccine Opt-out debate (different slashdot article). Just because 99.9% of people do not to exercise their right to skip the needle, does not mean the other 0.1% lose their right to make their own Choice. We should not be forcing them to be injected. (IMHO)

Hey, you don't want to be vaccinated? Go ahead and skip it and die, should you encounter the disease you refused the vaccination against. No skin off my back, good riddance, natural selection doing its jo

It _is_ skin off your back if your neighbor doesn't get vaccinated. First of all, vaccines aren't always 100% effective, or are effective for only a limited amount of time. Therefore to be useful we must make sure that the pathogen can't hide out in some intransigent sub-population. Secondly, some people cannot get a vaccine for medical reasons, despite their willingness to take it. People who stubbornly refuse to get vaccinated unnecessarily put those people in jeopardy.

"What part of "unless failure to do so would pose an immediate threat of grave harm to another person" did you not understand?"

The problem here is one of practicality and statistics. If ONLY 0.1% of people choose not to vaccinate, there would be little danger: few if any diseases would reach the critical mass necessary for an outbreak.

It is only when a more significant number refuse -- choosing a skewed (almost certainly exaggerated) perception of personal risk over the obvious public benefit -- that real problems arise.

And in fact it can be a self-fulfilling prophecy, in a sense: if too many choose not to vaccinate, they are

>>>In my opinion, Kozinski has just publicly demonstrated that he is not qualified to be a judge at all

In my opinion, Jane Q. Public has demonstrated she doesn't have a clue because if she had read the article, she would see the judge is arguing FOR privacy, not against it.

AND: I'm trying to figure out the connection to Asimov's "Dead Past" story. I guess the judge is saying our cellphones and other modern tech allow the government to see where we are at any moment in time. Hence: We lost privacy

"In my opinion, Jane Q. Public has demonstrated she doesn't have a clue because if she had read the article, she would see the judge is arguing FOR privacy, not against it."

Irrelevant. My problem isn't with which side he is on, but with the flawed logic he uses, and the ignorance he displays. Example, from TFA:

"... as a matter of technology, such a request could not have been complied with twenty-five years earlier."

Yes, in fact it could, as was proven in court testimony in the early 1990s. Contrary to TV shows as recently as those same years showing police trying to get people to talk for "5 minutes" or more so they could trace the call, in fact the telephone companies have been keeping exact records since the 1950s at the very latest. They have had machines that have been recordin

If we the people don't consider our own privacy terribly valuable, we cannot count on government...

This sentence contains a false semantic distinction between people and government. I.e., it attempts to draw a distinction between 'we, the people' and government itself. That distinction isn't as true as you might hope.

It could be easily rephrased as follows: "If we the people don't consider our own privacy terribly valuable, we cannot count those very same people when in government office to consider privacy terribly valuable."

It could be easily rephrased as follows: "If we the people don't consider our own privacy terribly valuable, we cannot count those very same people when in government office to consider privacy terribly valuable."

That's an excellent point.

I disagree. And I would expect a judge to know better.

Just because Alice does X does NOT mean that Bob also does X. And every judge should be able to understand that.

Unfortunately Judge Kozinski is absolutely correct in his argument. The problem that he hints at, though never outright states, in his article is that our privacy concerns hinge on the 9th amendment and not the 4th.

The 9th amendment is predicated on the will of society and as such if enough people do what Alice does then the government is legally obligated to hold that to be true. If Alice doesn't care about her privacy and a majority of society don't care about theirs, then unfortunately Bob doesn't get a

Check your premises. The Constitution is not a collectivist document. The framers were quite disparaging of Democracy, which they called the "tyranny of the majority". Therefore the Constitution was written to protect individual rights, not collectivist rights. That's why it's called a Republic, with power residing at the lowest level, and flowing up as required by agreement. So it is not sufficient for most people to give up their rights, as you describe, but requires that every last person give up their rights.

The framers were quite disparaging of Democracy, which they called the "tyranny of the majority".

And so they opted for a "tyranny of the minority" instead, which is also what they got. Congratulations. Do remember to thank them every time some wildly unpopular piece of bullshit legislation goes trough - after all, we wouldn't want the majority to spoil it for the 1%, now would we?

So it is not sufficient for most people to give up their rights, as you describe, but requires that every last person give up th

And so they opted for a "tyranny of the minority" instead, which is also what they got.

Yea, sure, the United States has been a tyranny for 230 years. Another indoctrinated puppet without critical thinking skills. What a surprise. I see the traitors are getting their money's worth out of that $80 billion a year creating a compliant population.

Maybe, just maybe, the problem is a major departure from the principles of the Constitution, rather than your regurgitated criticism of it as the cause of all ills.

Not having read TFA, I wouldn't have anything to say about any legal conclusions the judge was getting at. But he was right for sufficiently large numbers of "we, the people." Certainly if no one considered privacy terribly valuable, we could not count on those same people in government office to consider privacy terribly valuable. The converse is also true: if everyone considered privacy terribly valuable, then we could count on those same people in office to consider privacy terribly valuable, now couldn't we? What we have is something in the middle, and I would say that it's most likely getting worse, and not better.

Anyway, there is a travesty in modern politics, where we the people blame our government for this and that, ever the while failing to acknowledge that we the people are the constituencies of the vary same government we blame. Our government's are reflections of ourselves. We, the people, need to grow up and recognize that.

Consider the following: who's more valuable, a school teacher or a superstar athlete? Most everyone will try to make some sort of argument giving the teacher the nod. But of the two, who will fill up a stadium of people willing to pay $70 each? There is an uncomfortable truth here, and it's not so nice as to what it says about us.

"Rights do not cease to be rights merely because the majority of people do not exercise them."

You might have a point, except the "rights" we're talking about aren't categorical, but are qualified with "reasonable expectation."

Before Katz, the right to unreasonable search and seizure was categorical, and limited to a small list of places: e.g. inside your home. Katz overturned a long-standing Supreme Court precedent that wiretaps did not require a warrant. In order to overturn that, they used so-called judic

Before Katz, the right to unreasonable search and seizure was categorical, and limited to a small list of places: e.g. inside your home..

The 4th amendment says "... in their persons, houses, papers, and effects..."

That's a rather expansive list despite being only 4 items long. Back then, the only files people had were on paper, so applying today's technology to their era's terminalogy, "papers" would include computer files, email messages and more. Back then, "effects" meant personal property. Even in recent years, the phrase "personal effects" is occasionally used. So, the term "effects" would include a person's mobil phone, iPod/iPad/tablet PC, laptop PC or even desk PC.

Erosion of 4th admendment rights is mainly accomplished by finding ways to justify narrowing the interpretation these terms, and by justifying exclusion of things not explicitly mentioned.

While we might not be able to do much about lawyers aguring over the meanings of each and every word in the constitution and the mariad of laws we have, the 9th amendment specifies "The enumeration in the Constitution of certain rights shall not be construed to deny or desparage others retained by the people." Back then, this was their main worry about privacy - beyond that, you could ensure your privacy by looking around you to see if anyone was near enough to spy on you. Just becaue they didn't imagine the technology to circumvent this once simple precaution does not mean they intended to exclude protection from such intrusions by whatever means.

Worse than that. What the judge is saying is effectively that because you choose to disclose things about yourself, that it is reasonable for police to force me to disclose those same things about myself.

Rights do not cease to be rights merely because the majority of people do not exercise them; so long as even one person considers something to be private, the state has no legitimate authority to treat it otherwise unless failure to do so would pose an immediate threat of grave harm to another person. Period.

I think you maybe slightly misunderstood what he was saying. From his summary:

Which is to say that the concerns that have been raised about the erosion of our right to privacy are, indeed, legitimate, but misdirected. The danger here is not Big Brother; the government, and especially Congress, have been commendably restrained, all things considered. The danger comes from a different source altogether. In the immortal words of Pogo: “We have met the enemy and he is us.”

I think what he is actually saying is that if you want to keep a secret, then don't tell anyone about it. If you do disclose things about yourself, then don't be surprised if it comes back to haunt you.

The crux of this is that we often disclose very personal secrets about our private lives in ways that we think are completely anonymous. The thing is though that they are often not as anonymous as we think. For example I can post to

If we the people don't consider our own privacy terribly valuable, we cannot count on government — with its many legitimate worries about law-breaking and security — to guard it for us

Let me explain this for Alex. Some people don't consider privacy terribly valuable. That doesn't mean jack shit to my privacy. And the government and it's laws damn well better protect me. I pay for the damn thing.

We live in a democracy, and there are social norms that do indeed shift with time. If, at some point, a significant percentage somewhere between 50% and 99%, decide that X is a perfectly normal thing to casually share information about, then I can understand his point. Ther

Let me explain this for Alex. Some people don't consider privacy terribly valuable. That doesn't mean jack shit to my privacy. And the government and it's laws damn well better protect me. I pay for the damn thing.

And while we're on the subject, it's not me, the person's job to safeguard my privacy against an executive branch gone awry. It's the Hon. Alex Kozinski's job to reign in the executive when it crosses the line.

Soap box, ballot box, jury box, ammo box. As a judge, he should know that we the

The judge agrees with you. He's trying to warn you. His warning is that it's all too easy for government agents to fall into the trap of thinking that you describe when people do not actively guard their own privacy. He's not saying that this is right and proper, he's describing the world as it is, not as it should be.

Public has a very little say in what and how technology is used. FB for instance is not a public property and yet big enough to influence the way your private data is handled i.e. sold. Majority does not even understand the implications and consequences of using of particular technology or tool. How can they be held responsible then? Even private use of a company owned computer is not always a good reason to fire you - a case in Sweden when a company used pr0n watching as an excuse to fire somebody and lost

Exactly. Most people aren't concerned with their on-line privacy, because they don't understand the issue. They see that the people they know can see the pictures of their cute kids. They don't see/b/ or reddit or 9gag or someone else taking that picture, morphing it into a meme, and unleashing it on the world (side note, in my opinion, this is the slightest invasion of privacy available to you today; at worst, corporations use your information to use 'targeted ads' on you).

And how are we going to do that? I've come across countless people who basically say, "If you have nothing to hide, what do you have to fear?" They trust the government unconditionally as long as they claim to be protecting them from the terrorists or if they claim to be protecting "the children." They're completely ignorant (perhaps willfully) of history and its long line of horribly, evil, and corrupt governments. Can we really convince them?

And how are we going to do that? I've come across countless people who basically say, "If you have nothing to hide, what do you have to fear?"

Well, I just suggest that they put all their account names, numbers and passwords online. They have nothing in those accounts to hide, right? Most people have the sense to understand why this is a really bad idea. If they didn't have that much sense, they've probably already had an account drained or seen someone else post something online in their name, so they've been taught "the hard way".

Giving the government the "right" to intercept and record our electronic communications is guaranteed to result

>>>They see that the people they know can see the pictures of their cute kids.

Funny you bring that up.I just tried to log into facebook from a wireless device (instead of my home PC), and facebook made me identify a bunch of people in various pictures. Problem: Some of the pictures are kids I've never seen, or random uploaded comic/joke images, or people I know online but not by sight, so I couldn't identify them even if I saw them.Basically I couldn't get past this security.Why couldn't they just

Targetted ads bother me far less than malicious editing and hate-filled distribution of pictures of non-public figures intended to mock and offend.
And both should be legal.

Well, the world's political cartoonists will certainly thank you for writing that.;-)

And, lest you think I'm being silly, consider that here in the US, judges have ruled that computer-generated pictures that look like naked children are legally child pornography. Even when no children were involved in the creation of the images.

It's only a small step from there to considering a political cartoon image of people to be equivalent to an actual photo of those people. We do have cases of 'shopped images

In a world where people tweet about their sexual experiences and eager thousands read about them the morning after, it may well be reasonable for law enforcement, in pursuit of terrorists and criminals, to spy with high-powered binoculars through people's bedroom windows or put concealed cameras in public restrooms.

Dear Penthouse, I've read the letters that people sent into you for years but I never thought that I'd be sending one in. It all started...

He's not blaming the victim. He's saying that the law is largely based on the expectation of privacy, and goes into some detail about how that works from a legal perspective (and how to define privacy in the first place).

Fourth Amendment protections don’t turn entirely on the conduct of any one individual; to a large extent they depend on whether we, as a society, treat something as private.

As the law stands right now, any time you share information with (or through) a third party, whether it's Fa

...between haxing accounts and forcing ISPs to give up info, and me sharing a photo of myself at a party. If I share a photo of myself at a party, that goes out to friends, and friends-of-friends, and in general I trust that people aren't going to just post that everywhere. This isn't always the case, but when it does happen it's commonly accepted as a dick move.

This is just another "It's different because of the internet." bullshit justifications.

People have always let those they are close to to know where they are.

People have always talked about sex.

People have always talked about their health issues.

The internet IS different.

For starters - here's two ways it's different from what people have traditionally expected.

First, its reach is global. Second, it's memory is infinite, and it remembers everything.

The first point is what gets a lot of people. If I talk about sex on say, a street corner with a few friends, the general expectation is that the only people who will hear it would be my friends, and the people in the immediate vicinity (and likewise my friends' friends and their local group). Either way, it generally won't spread too far (the worst is the whole town if it's small).

With the Internet, that blog post or status update, becomes global as friends notice and re-post/re-tweet/congratuate etc. You may make it private, they, public. And now the whole world knows.

The second gets people over and over again - the internet does not forget. You put something up, and others copy it and put it around. It works for software, and it works for everything else as well. Old newsgroup posts people thought were dead were resurrected. Old tales of misdeeds haunt them at the next job interview, that sort of thing.

Thing is, most people don't realize it and they think telling everyone their FourSquare location is only going to be of interest to friends when a lot more people may stumble upon it.

He's completely correct. People don't give a fig about their privacy. They splatter intimate details of their private lives all over the internet, where not only everyone else can see, but every future person can look up with ease because it's a permanent record. I can only laugh at the people who flip out because they are fired/expelled/whatever because someone found something inappropriate in a facebook or twitter post. I mean, really... what did they expect?

If you have something you want to be private then maybe... just maybe.... you shouldn't publish it onto a world-wide computer network that is viewable by millions of people!

And this is ignoring the studies that found people would willingly give up their passwords and whatnot for a chocolate bar, or used passwords like 12345 (queue luggage jokes...).

Except we're not talking about just someone. We're talking about a majority of the population. A majority of the population that doesn't care about their personal privacy. The same majority that votes in officials who are like them because they want the country run by people "they can sit down and have a beer with". And then they are surprised when privacy violations occur.

But here's the funny part: they're not always surprised or even outraged. Especially when everyone's privacy is being violated "to stop the terrorists" or "for the children." In those cases, some even cheer the privacy violations on!

I can only laugh at the people who flip out because they are fired/expelled/whatever because someone found something inappropriate in a facebook or twitter post. I mean, really... what did they expect?

In every case I've heard of along those lines of, they probably expected to be judged based on behavior and performance on the job/in school. "Yes, I posted pictures of my friends and I smoking pot on facebook. At home. On the weekend. Why, exactly, am I being fired for something that doesn't affect how many TPS reports I can generate?"

If companies weren't so stupid about private details they uncover, privacy wouldn't be as necessary.

Sorry, he's full of shit. I value my privacy, and I don't splatter intimate details of my private life all over the internet. Do you think the cops are going to check whether I have a facebook page before they take infrared images of my house?

I can only laugh at the people who flip out because they are fired/expelled/whatever because someone found something inappropriate in a facebook or twitter post. I mean, really... what did they expect?

I have a big problem over people being punished over irrelevancies, private or not. Fired from your job because of something you do on the weekend that your boss doesn't "approve" of? That's BS. I have yet to see an job description/application that sets guidelines on how I use my personal time.

There is way too much hand-waving going on with respect to making unflattering or risque information "public" by failing to keep up to date on FB's latest privacy policy ruse. Ditto for the supposed "logic" of exp

Unless there is clear damage to an employer's reputation, and I am talking legal libel/slander standards, I don't see any justification for judging of punishing people for "inappropriate" conduct. People shouldn't have to be paranoid about privacy. Are we all supposed to live our lives according to the standards of the most uptight HR weenie?

People should be able to trade their password for a chocolate bar, because it is illegal to steal.

People *shouldn't* have to be paranoid about their privacy, but that's not how the world currently works. What we are seeing in the world now, is exactly what we should expect to happen. These same people who don't care about their personal privacy, are the same people who have no problem voting for officials who also don't care about the voter's personal privacy. I mean, look what happened to the legislation that was supposed to ban employers from demanding facebook passwords? It got killed off. Employers *shouldn't* be abusing publicly available information like this. But, surprise surprise, they are. Why? Because no one is saying that they can't.

Freedom, liberty, and security are not like features that you can tick off on a spec sheet once you've obtained it, not worrying about it evermore. You have to fight for them, and you have to *always* be on guard of having them taken away. Since the majority of the North American populace doesn't care enough to look beyond their next text message, the best that the rest of us can do is do what we can to avoid being swept up in the inevitable tide.

No he isn't right. Just because someone voluntarily share's personal information does not justify the government coerce my doctor, my phone company, etc. that they must divulge private information without my consent.

I can only laugh at the people who flip out because they are fired/expelled/whatever because someone found something inappropriate in a facebook or twitter post. I mean, really... what did they expect?

I think they expected their employers to mind their own damn business. I'm not a huge fan of neo nazis working in hospitals, but there are some out there, and they have to separate their ideology from their job. I may not like the fact that they think certain things or do certain things when they are not at wo

Obviously, you have tha right to share whatever personal information you want with the rest of the world. Why that would mean you have no right to privacy is beyond me. By that logic they could confiscate your wealth after donating to a charity, because you were giving away money so you obviously don't need it. You have the right to share your personal information and the right to keep it private.

Privacy is just a variant on the same theme as physical property, copyright or trademarks - our right to give someone something of ours is NOT the same as someone else's right to give someone something of ours. If something belongs to you, then since the days of Hammurabi it truly belongs to you and you have final say on what happens to it.

Privacy is NOT, as this judge would have it, equatable to a trade secret - where, once it is known, it is no longer afforded the protection of being a secret. Well, ok, some people regard this as being the correct model but I (and most of Europe) dispute this and, frankly, I'd argue that Europe has had rather longer to debate the various models than the American judiciary.

Once all data in your life is reduced to mere secrets (rather than personal property) you run into the obvious problem that everything in your life is ultimately reducible to data. That includes physical property, since ownership is not conveyed by possession but by certification and certification is data.

I'm not saying loss of privacy necessarily means loss of any form of ownership, but since they stem from the same root principle and have the same ultimate objective (you control what you own) then damage to both ends of one chain must correspond to damage to both ends of both chains. The "slippery slope" argument is often abused, but here I think it is a very legitimate concern and should not be treated lightly.

Judge Kozinski has missed the biggest part of this equation: the concept that WE get to choose when we want to be private.

Certainly there are circumstances in which one does not get to choose, like walking around in public. But for the most part, the value of privacy is intimately attached to the fact that WE choose when we want to exercise it, and when not.

Right, except that the majority of the population choose not to exercise it. Worse, they look scornfully at those of us who do, and demand that the government take that option away from us. And so they are.

Judge Kozinski has missed the biggest part of this equation: the concept that WE get to choose when we want to be private.

Exactly. The judges logic is akin to saying that since some people enjoy piercing their skin with hooks on ropes and hanging from the ceiling by them, that clearly it must be fine to force that on someone else.

Or on the flip side, he is stating as fact that since most people speed while driving, that speeding must clearly be legal.Since most people do not get punished for speeding, then no one can ever be punished for speeding.

Stupid logic either way you look at it. Further proof that judge, lawyers, and police do NOT live in the real world.

Judge Kozinski has missed the biggest part of this equation: the concept that WE get to choose when we want to be private.

Ok, but consider. You KNOW friends who post EVERYTHING they do online. Now imagine a few years when their kids grow up (or they themselves grow up) and those people become our judges and our police and our political leaders. Now YOU respect your privacy. But apparently these people don't, and they don't think anyone else does either.
Remember the government isn't just a big faceless mob, it is made up of people.

This story summary ends with "Excerpt continues below" but there is no link to click on to read it. I clicked on the "Read the 25 comments" link, but that doesn't make sense unless you are a Slashdot veteran. It would make more sense for the text "Excerpt continues below" itself to be a link, or do what other sites do like Engadget's "Read more -->" link.

"In a world where people post up-to-the-minute location information through Facebook Places or Foursquare, the police may feel justified in attaching a GPS to your car. In a world where people tweet about their sexual experiences and eager thousands read about them the morning after, it may well be reasonable for law enforcement, in pursuit of terrorists and criminals, to spy with high-powered binoculars through people's bedroom windows or put concealed cameras in public restrooms. In a world where you can listen to people shouting lurid descriptions of their gall-bladder operations into their cell phones, it may well be reasonable to ask telephone companies or even doctors for access to their customer records. If we the people don't consider our own privacy terribly valuable, we cannot count on government — with its many legitimate worries about law-breaking and security — to guard it for us.'"

Absolutely not. Just because individuals -- or even society at large -- choose to make their public lives private does not mean, suggest or imply that *I* have chosen to do so. Similarly, even if I do create posts on Facebook Places at times, tweet about (some of) my sexual exploits, or discuss selected health issues on the telephone in public places, that does not mean that I have agreed to disclose my whereabouts at all times, agreed to allow voyeurs to peek through my bedroom windows at all, nor agreed that all of my health and telephone records should be public (and just to be clear, I was not aware there even was a Facebook Places, nor have ever signed up for Twitter, much less Tweeted about my sex life -- although, I probably have discussed selected health issues in places where I could be overheard).

To argue that, at times, we may knowingly and consciously choose to give up certain elements of our privacy means that we therefore have no value for privacy at all -- and that consequently, the government should be allowed to violate our privacy at their whim -- is absurd beyond belief. That a sitting judge would suggest such a thing is frightening beyond belief. I would expect a judge to have, well, better judgment than that.

I do, however, agree completely with his last sentence in the quote above. Both individually and collectively, we had better start acting as if privacy is still important to us before we no longer have any privacy left, and we had better make sure our elected officials get that message loud and clear.

Some years ago an ambitious prosecutor in Utah filed criminal charges against an adult entertainment store alleging obscenity in the adult videos that were rented or sold. The attorneys decided to establish community standards by demand a rental record of adult videos from all of the Salt Lake City hotels and video rental outlets. The charges were dropped when it became evident that the videos were within community standards. It worked out well for the accused in this example.
What the judge is saying is that if our social and or community standards for privacy are low then the government will have a low standard for guarding privacy. If it becomes normal and acceptable to post lurid pictures of yourself all over the net then we have little complaint if the government looks at these photos. Consider the few cases where criminals have posted online boasts about criminal activity, and in some cases displaying the stolen goods. Law enforcement comes calling and those posts are evidence against them. The judge is giving us a fair warning about the possible direction of privacy case law.

I know I shouldn't be surprised by all the people posting without actually having read the article, but c'mon...

The judge is not justifying or apologizing for what the government is doing. He's pointing out that what is happening is an inevitable consequence to the path that we, as a population, are on and that we shouldn't be the slightest bit surprised.

The vast majority of the population is happy to vomit the most lurid details of their lives onto a public forum. They are willing to give up their passwords for a chocolate bar. These are the same people who want public officials that they can identify with. That they can "have a beer" with. In other words, who are like them. So what happens? We get officials that think nothing of violating other people's privacy, cause the people want them to. Except these people can't be bothered to think far enough ahead to release that everyone is an "other person" to someone else, and ergo everyone's privacy is up for grabs.

But everyone here would rather shoot the messenger, rather than take what he wrote as the warning it is.

Exatley this.
What this is, is a change in society's values. You can argue that people have always had the tendency to give up their privacy but with the internet we have a medium that allows an incredibly easy way to give up your privacy. Couple that with a corporate world that has discovered just how easy it is to farm this for increased profits and people's inability to see the results of their actions and you get people happily giving up their privacy and never thinking about it's consequences. Privacy

Someone points out a flaw in an argument against $person or $political_position, and some immediately assume they therefore must support that person or position. The person who pointed out the flaw is then attacked.

Current events example: Someone says George Zimmerman is a murderer since he has been arrested and charged. A second person says "Well, he's only accused as he's not been convicted yet."

If what the judge says is true, and we are all just putting all of our information out for anyone to read, then law enforcement should have no more need to request information from social media companies anymore. After all, my status updates, photos, etc. are easily viewable by anyone, including law enforcement.